Secretary of State differing from inspector’s recommendation and granting planning application for erection of six wind turbine generators – Applicant seeking to quash Secretary of State’s decision – Whether failure to comply with r 16 of Town and Country Planning (Inquiries Procedure) Rules 1992 – Application dismissed
Wind Energy Group Ltd applied to the local planning authority for permission to erect six wind turbine generators, associated access tracks and a substation building on land at Mynydd y Cemmaes, Powys. After a public inquiry, the inspector concluded that two of the turbines would be unacceptably harmful to the appearance of the area and recommended that only four be permitted. The Secretary of State differed from the inspector’s conclusions relating to the visibility and intrusiveness of the turbines and granted the application for six turbines as sought.
The applicant sought to quash the Secretary of State’s decision pursuant to section 288 of the Town and Country Planning Act 1990 on the grounds that: (i) he had failed to comply with r 16 of the Town and Country Planning (Inquiries Procedure) Rules 1992 in that, having decided to differ from the inspector upon material factual matters, he should have notified the persons entitled to appear at the inquiry of his reasons for doing so in order that they might make representations; (ii) he had differed from the inspector’s conclusions in respect of the visual impact of two of the turbines without having any evidence before him that enabled him to do so; (iii) he had failed to apply section 54A of the 1990 Act by not adhering to the appropriate policies in the development plan, which required sensitive development and/or the avoidance of any adverse environmental impact; and (iv) he had acted irrationally and had failed to take relevant and material factors into account in granting the application subject to a noise condition in the terms initially proposed by the inspector, despite the agreement of the parties at the inquiry to alter the draft noise condition.
Held: The application was dismissed.
Rule 16 was directed to differences of fact. In the instant case, the difference between the Secretary of State and the inspector was one of opinion, not of fact, so that r 16 did not come into play. The Secretary of State had had sufficient material before him upon which he could make a planning judgment as to the visual impact of the two turbines. His decision was not perverse. The appropriate development plan policies were considered. The Secretary of State was not bound by what was agreed at the public inquiry and he had explained why he adopted the noise condition in its original form, namely because he found it to be adequate. There was no irrationality, since his view of the matter and the reasons for his course of action were clear.
John Campbell QC (instructed by Dawson & Co) appeared for the applicant; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sarah Addenbrooke, barrister
